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Frank Pignanelli & LaVarr Webb: Is 'soft repeal' of 17th Amendment a good idea?

Published: Tuesday, Jan. 31 2006 10:07 a.m. MST

WEBB: I love the philosophy behind what Sen. Howard Stephenson and other Utah senators are trying to do with SB156, the so-called "soft repeal" of the 17th Amendment.
Anyone who cares about federalism, who resents the consolidation of political power at the federal level, who supports a better state-federal political balance, ought to applaud Stephenson and other supportive legislators. As a practical matter, the legislation isn't going to be enacted any time soon, and a great deal more work and education will be required. But as a starting point and as a symbolic gesture, SB156 it is both valuable and important, and it will hopefully spur further thought and ideas on how to restore the states to their rightful place in the federal system.
Passage of the 17th Amendment in 1914 led to the direct election of U.S. senators, which was clearly an enormous blow to states' rights. The nation's founders wanted to carefully balance state and federal power, so the Constitution required the House of Representatives to be elected by popular vote, but the Senate was elected by state legislatures.
Thus, the Senate would be highly responsive to the overall priorities of states, as reflected in their legislatures. It is not likely the federal government would pass unfunded mandates, usurp state power or dictate improperly to states as long as U.S. senators were answerable to the legislatures.
Unfortunately, the legislatures did not deal well with the power they enjoyed. The infighting was so intense over who should be elected that Senate seats were sometimes vacant for long periods. And corruption was common, with vote-buying and backroom deals determining the selections. So it was understandable that the Congress and the people gave election of senators directly to the people, vastly reducing the impact state legislatures have on the federal government. Whatever good reasons for the change, it had a dramatic impact on the balance of power, leaving states little recourse in competing with the overwhelming clout of the national government.
As a result, states are mostly afterthoughts for federal politicians and policymakers. The consolidation of power at the federal level has led to a federal government run amok, a federal government too big, too bloated, deeply in debt, with immense financial obligations no one believes it will ever be able to fulfill. If private businesses or state legislatures operated the way the federal government does, their leaders would be thrown in jail or they would be voted out of office.
By contrast, states, the "laboratories of democracy," balance their budgets and govern responsibly. State legislatures are far more professional, sophisticated and ethical than they were 90 years ago. I have far more confidence in my state legislature than I do in the federal Congress, which threatens to literally destroy the country with its careless, reckless and negligent spending habits.
Stephenson has produced an elegant and ingenious approach, which would have some of the benefits of the founders' original intent but stay within the current Constitution. Voters would still elect their U.S. senators, but nominees would be selected by legislative party caucuses instead of in party conventions or primary elections. It's nice to have federalism back on the agenda.

Pignanelli: The 17th Amendment is the Rodney Dangerfield of the U.S. Constitution — it doesn't get any respect. There is a whole industry (books, seminars, Web pages) dedicated to dismantling the direct election of senators. This concept enjoys the support of a diversity of heavyweights, including Supreme Court Justice Antonin Scalia and former Democratic Sen. Zel Miller.
Since altering our federal constitution is not easy, the 17th Amendment should be safe. However, the architects of the recent Utah resolution, state Sens. Howard Stephenson and Curt Bramble, have crafted a brilliant method to maneuver around the inconvenient amendment process — substituting the legislative caucuses for a political party in nominating candidates. The intent of Stephenson and other sponsors is not to insult Sens. Orrin Hatch and Robert Bennett but rather to address the issues many believe this amendment is causing.
LaVarr and others speak loftily of the halcyon days and "golden age" when states chose their senators, but the reality is far different. Within 30 years from the founding of the republic, measures were frequently introduced in Congress to resolve the increasing problem in these legislative selections. During the 1800s, there were numerous verifiable incidents of bribery by affluent politicos to influence deliberations and in effect purchase a Senate seat. Frequently, states were not fully represented in the Senate because of deadlocks between the statehouse and Senate over the ultimate choice. In fact, 45 stalemates occurred in 20 states from 1891 to 1905 alone. Things got so bad that by 1912 over two-thirds of states conducted referenda to allow public expression of their choices for the position.
The GOP has controlled the Senate for almost 18 of the last 25 years. These Republicans got elected on a platform of states' rights and limited government. If these self-professed conservatives could not achieve these goals, altering the selection process offers no hope. Indeed, blaming the 17th for the county's woes is similar to faulting alcohol for the transgressions of the alcoholic. (To complete this simile, we all recall the history lesson detailing the disastrous results when the best intentioned politicos manipulated the Constitution to prevent imbibing.)
Over the years, I have entertained thousands of Utahns with humorous stories of the antics on Capitol Hill. Yet, I am a firm believer in the legislative process and a staunch defender of the Legislature as an institution. Legislators are chosen to represent their geographic districts, and perform well in this capacity. But, the dynamics of lawmaking in behalf of constituents is not transferable to deciding statewide leaders. Furthermore, the force of special interests will always exist in Congress, regardless of the selection process.
Despite our strange television viewing and sinful eating habits, Americans are a people blessed with common sense. We have been, and will remain, the superior judges in determining the makeup of the Senate.


Republican LaVarr Webb was policy deputy to Gov. Mike Leavitt and Deseret News managing editor. He now is a political consultant and lobbyist. E-mail: lwebb@exoro.com. Democrat Frank Pignanelli is a Salt Lake attorney, lobbyist and political adviser. Recently, the lobbying firm Foxley and Pignanelli, of which Frank Pignanelli is a partner, was retained by the Utah Media Coalition to lobby the Utah Legislature on press freedom issues. The Deseret Morning News is a coalition member. Pignanelli served 10 years in the Utah House of Representatives, six years as House minority leader. He was a former candidate for Salt Lake mayor. His spouse, D'Arcy Dixon Pignanelli, is executive director of the state Department of Administrative Services in the Gov. Jon Huntsman Jr. administration. E-mail: frankp@xmission.com.

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